163 Ill. 518 | Ill. | 1896
delivered the opinion of the court:
Whether plaintiff became sick from eating the oyster stew at the defendants’ restaurant was a question for the jury, and while the evidence produced by plaintiff that eight or nine hundred persons were served with oyster stews at the same time and place, none of whom became sick, would seem to be a strong circumstance tending to establish that plaintiff’s sickness was attributable to other causes, yet we are inclined to the opinion that if plaintiff had made out her case in other respects it would have been the duty of the court to submit this question to the jury. It will be observed that plaintiff, in her declaration, averred that defendants, as restaurant keepers, served plaintiff with oysters, and “carelessly, negligently and unskillfully, and through carelessness,” did “deliver to plaintiff, to be by her eaten, an oyster stew that was not good or wholesome, and deleterious, dangerous and poisonous,” etc., whereby plaintiff became sick. This was, no doubt, regarded by plaintiff as a material averment, and it was a material averment,—one upon which the right of recovery of plaintiff rested,—and unless the evidence fairly tended to establish negligence on the part of defendants, plaintiff could not recover.
But it is said in the argument, that “inn-keepers are prima facie liable for losses which happen to the goods of their guests, and on the same principle restaurant keepers should be prima facie liable for injury resulting from unwholesome food furnished by them.” The law is well settled that the keepers of public inns are required to safely keep the property of their guests, and in case such property is lost the inn-keeper can only relieve himself from liability by proving that the loss occurred without any fault on his part or that the loss occurred through the fault of his guest, and the burden of proof to exonerate the inn-keeper is upon himself, for the reason the law, in the first instance, will attribute the loss to his default. (Johnson v. Richardson, 17 Ill. 302.) As respects the goods of a guest which he takes with him when he stops at an inn, the inn-keeper is practically an insurer, and where an action is brought to recover for goods lost, the guest is only required to show the existence of the relation of inn-keeper and guest, and the loss, to authorize a recovery. But as to food served at a restaurant, such as oysters, ice cream and the like, we are not aware that a similar rule establishing liability ever existed. There is no similarity between the two cases, and the principle that governs one does not apply to the other. If a person keeping a public restaurant fails to exercise ordinary care in furnishing food to his patrons and damages result, he will be liable if his business be conducted in a careless or negligent manner and through such negligence a patron is injured. But where an action is brought to recover damages the burden is upon the person bringing the action to establish carelessness or negligence.
Plaintiff claims that having proven that she ate the oyster broth at defendants’ restaurant, and in consequence became sick, her case is made out, or, at least, the burden of proof is shifted on defendants. If this rule were adopted plaintiff would be relieved from proving the most important element of her declaration,—the negligence of defendants,—which is really the foundation of the action. This would, in effect, make the restaurant keeper an insurer. Such a rule is not correct on principle, nor has it been sustained, so far as we are advised, by any respectable authority. Wiedeman v. Keller, 58 Ill. App. 382,—a case cited by appellant,—was one where the plaintiff brought an action against a retail dealer in meats to recover damages resulting from eating pork containing trichina, sold to him by the dealer. In deciding the case the court held, that when a vendor of provisions has no notice, and cannot, by the exercise of reasonable or ordinary care, ascertain the unwholesome or unsound condition, there is no implied warranty of the soundness of the provisions not prepared or manufactured by such vendor. Here there is no pretense that defendants manufactured either the oysters or the milk,—the two ingredients of the oyster stew,—and under the rule laid down in the case cited there could be no liability.
Plaintiff has cited Bracklin v. Fonda, 12 Johns. 467, as an authority. But that was an action brought against a person for selling a quarter of beef as good and sound when it was bad and unwholesome, but it was proven that the vendor knew, when he sold the beef, that it was diseased, and while the rule laid down in that case is proper under the facts, it has no application to this case. Here plaintiff called but one witness to prove negligence or carelessness on the part of defendants, and upon an examination of the evidence of the witness it will be found it does not tend to show that defendants were guilty of any negligence or carelessness.
As plaintiff failed to introduce any evidence tending to prove the most material averment of her declaration, the instruction of the court to find for defendants was correct.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.